17 May is the International Day Against Homophobia, Transphobia, and Biphobia established in 2007 by the European Union.
The date was chosen to commemorate 17 May 1990, the day on which the WHO removed homosexuality from the list of mental illnesses, calling it for the first time ‘a natural variation of human behaviour’.
The topic concerns labour law with regard to the prohibition of discrimination on the grounds of sexual orientation, both during personnel selection and therefore access to employment and also after hiring.
Alongside this profile, other aspects are also relevant, such as, for example, the importance of valorising diversity in the workplace and protecting employees against discriminatory behaviour by colleagues. All this also with a view to implementing ESG principles.
We would therefore like to take this opportunity to talk about the advantages for companies that invest in Diversity&Inclusion, and to examine a recent ruling by the Court of Cassation according to which dismissal for just cause is legitimate in the case of an employee who uses homophobic expressions towards a colleague.
The benefits of an inclusive work environment
Proper management of diversity within a business organisation allows for the creation of an inclusive work environment that fosters the expression of everyone’s potential.
Statistics studies show that effective diversity management produces numerous benefits for companies and employees. In particular, benefits include:
– an increase in creativity, innovation and productivity: a diverse work group performs better on average than one in which homogeneity predominates;
– attraction of the best resources: a company that embraces diversity promotes a positive image of its workplace and can, as a consequence, attract a large number of candidates interested in a company that is perceived as a dynamic environment in which to enhance their potential;
– improved company reputation and image: a company that decides to invest in valorising diversity embraces a big opportunity to place itself ahead of its competitors in terms of both reputation and productivity, turning its inclusive work environment into a distinctive feature.
In order to achieve these results, actions must be put in place that aim for a more effective inclusive practice through the implementation of policies and measures promoting respect for and integration of diversity.
Think, for example, of those companies that have extended insurance to LGBTQI+ partners, which have introduced marriage leave also for same-sex couples, as well as family bereavement leave and shopping vouchers even before Cirinnà law no. 76/2016 intervened to regulate same-sex civil unions.
According to the ISTAT and the Ministry of Labour statistics report on LGBTQI+ inclusion and diversity for the years 2019-2021, the measures most adopted for the valorisation and management of LGBTQI+ diversity are those regarding transgender employees. These include, for example, the possibility of using toilets and changing rooms in a manner consistent with a person’s gender identity, initiatives that guarantee transgender workers the right to express their gender identity in a visible manner, and specific measures to protect the privacy of workers who have undertaken the transition process before joining the company (e.g. use of the so-called ‘alias identity’, which consists of using a name that coincides with the person’s gender identity even if the transition process and related bureaucratic procedures have not yet been completed).
It is also essential that staff become aware of stereotypes and develop skills in constructive interaction with diversity. This is made possible with a well-structured training programme that does not consist of one-off or sporadic events, but is a long-term initiative that involves the entire staff, i.e. not only the human resources department, but also top management and team coordinators.
The case: dismissal of the homophobic employee
Valorising and protecting diversity in the workplace also means taking a stand against employee behaviour that discriminates against colleagues.
Recently the Court of Cassation (Order no. 7029/2023) dealt with the case of a bus driver dismissed for having uttered, in the presence of passengers, offensive and discriminatory sentences on the sexual orientation of his colleague who was waiting to start her shift (in the case in point, having learned that his colleague had given birth to twins, he asked her “But, aren’t you a lesbian?” “How did you get pregnant?”).
The trial judges had reduced the driver’s behaviour to an act of substantially uncouth behaviour, less serious even than‘uncouth or improper behaviour towards the public’ punishable by suspension from service and pay under Article 42 of Royal Decree 148/1931 (road hauliers).
This reasoning was not shared by the Supreme Court, according to which the assessment made by the trial judge, in classifying the behaviour as merely uncouth, did not comply with social values and with the principles of the legal system: the trial sentence referred to behaviour contrary only to the rules of good manners and formal aspects of civilised living, where the content of the expressions used contrasts with far more weighty values, rooted in the social conscience and the expression of general principles of the legal system.
Society, in fact, has evolved in its greater awareness of the respect that any choice of sexual orientation deserves and of the fact that it pertains to a person’s intimate and absolutely private sphere.
Intrusion into this sphere, carried out, moreover, in a mocking manner and without regard for the presence of third persons, cannot be considered a mere violation of the formal rules of good manners. On the contrary, when assessing this behaviour consideration must be made of the centrality in the Constitution of the inviolable rights of man, the recognition of equal social dignity without distinction of sex, the full development of the human person, and work as a sphere of expression of an individual’s personality, which is subject to particular protection in all its forms and applications.
The legal system precisely specifies this general system of protection with anti-discrimination rules to prevent or repress forms of gender-related discrimination. Particularly important among these is Legislative Decree no. 198/2006 (Equal Opportunities Code), article 26, paragraph 1 of which states that ‘harassment or undesirable behaviour, motivated by gender-related reasons, with the purpose or effect of violating the dignity of a male or female worker and of creating an intimidating, hostile, degrading, humiliating or offensive climate shall also be considered discrimination’.
The Supreme Court therefore repealed the sentence to enable re-examination of the case in order to verify the existence of just cause for dismissal in light of the correct scale of reference values as reconstructed above.
Creating an inclusive work environment, which allows workers to express their diversity and thus contribute to change, is a major challenge for companies: diversity and inclusion are assets that organisations must draw on to create value and innovation.
Our Firm is at your disposal to support you in the development of policies on diversity and inclusion as well as on harassment and, in general, in your choice of the best strategies to valorise and protect diversity and promote a corporate culture based on a fair and non-discriminatory approach, which is also useful for meeting ESG parameters.